Evolving Disability Policies: From Social-Welfare to Human Rights An International Trend from a European Perspective
| Author | Lisa Waddington |
| Published date | 01 June 2001 |
| Date | 01 June 2001 |
| DOI | http://doi.org/10.1177/092405190101900203 |
| Subject Matter | Article |
Evolving Disability Policies: From Social-Welfare to Human Rights
An International Trend from a European Perspective
Lisa Waddington"
Abstract
Thelast decade has seen notable changes in a disability policy. Social-welfare policieswhich
have sought to separate
and
segregatepeople with disabilities have been reconsidered. and
attempts have been made to develop a more integrated approach. The new approach
recognises the role which discrimination plays in disadvantaging people with disabilities,
and seeks, through, interalia, legislation, to combat elements
of
disability discrimination and
create equality
of
opportunity
for
people with disabilities. This article examines these
developments and reflects on the attitudes and assumptions which lie behinddisability policy
today. The article focuses on recent developments in Europe, at both the domestic and
European Union level, and places these developments in the context
of
evolving international
human rights provisions, which have also begun to embrace a human rights approach
disability. The area
of
employment is used to illustrate the changes in attitude, and the
consequent changes in policy and legislation.
Introduction
Until relatively recently, international human rights texts generally adopted one of two
approaches
towards disability:
universal
instruments,
suchas the International Covenant on
E.conomic,
Social
and Cultural Rights,
tended
not to specifically mention people with
disabilities, whilst 'specialist' instruments, such as the UN Declaration on the Rights of
Mentally Retarded Persons (1971) and the Declaration on the Rights of Disabled
Persons
(1975),
were targetedat peoplewith disabilities. Such targeted instruments were naturally
alsodirected towards othergroupsI -
however,
theseothergroups, such aswomenand racial
minorities, tended also to receive attention in
universal
instruments,' and the targeted
instruments which were directed at them
tended
to have a higher legal status than the
declarations, resolutions and recommendations whichaddressed disability.
The failure to refer to disability in universal
human
rights texts, and the use of weaker
non-binding instruments forthose
measures
whichtargeted peoplewithdisabilities,
arguably
reflected the belief that people with disabilities were not a group that were particularly
VUlnerable
tohuman rights
abuses.
Whilstpolicy-makers couldnothave doubted thatpeople
with disabilities were disadvantaged, this was explained by the existence of physical or
mental
impairments (a medical
model
of disability inspiring social-welfare policies), rather
SeniorLecturer in European Union Law, Faculty of Law, Maastricht University, the Netherlands, This
article is based on a paper presented to a seminar at the University of California at Berkeley on 22
November1999.A shorterand amendedversionof this articlewas alsopublished in Cooper,J. (ed.),
Law,
Rights and Disability, Jessica
Kingsley
Publishers,
LondonandPhiladelphia, 2000,pp. 33-57.The authoris
gratefulto theCentrefor Human Rightsof Maastricht University for providing
fmancial
support,
Professor
Theresia
Degener,
Visiting
Professor atBerkeley
1999-2000
andthe Law Schoolat Berkeley for
facilitating
thevisit, and the
anonymous
refereeforhelpful
suggestions.
See,e.g., Convention on the
Elimination
ofAll Forms of RacialDiscrimination (1965) andthe
Convention
on the Elimination of All Forms of Discrimination against
Women
(1979).
For example,in the general non-discrimination Iequalityarticles containedin the instruments.
Netherlands Quarterly
of
Human Rights. Vol. 1912,141-165,2001.
(CNetherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 141
NQHR2/200J
than being seen as a result
of
discrimination and inadequate respect for human rights (a rights
based model
of
disability inspiring, amongst others, anti-discrimination laws). This
international approach
of
developing separate instruments, and even at times a separate
approach for people with disabilities, was also reflected in developments at the national level
in Europe (and elsewhere), where policies and legislation provided for access to separate
labour markets, education and housing for those people with disabilities who were unable to
(easily) meet the standards set fornon-disabled individuals. Since the inability
of
people with
disabilities to integrate was explained by the existence
of
an impairment, the segregation of
people with disabilities was seen as an appropriate, and perhaps even a kind response.
However, the last decade has seen notable changes in disability policy. Changed
assumptions about the concept
of
disability, and particularly about the role which
discrimination plays in disadvantaging people with disabilities, have been reflected in the
adoption
of
new international and national instruments and policies. As a consequence,
social-welfare policies which have sought to separate and segregate people with disabilities
in 'special' schools, labour markets, residential accommodation and transport have, to some
degree, and in some countries, been reconsidered, and attempts have been made to develop
an integrated approach, opening up jobs, services and housing to all people irrespective
of
their ability or disability. A key element
of
this new approach has been the recognition that
segregation and exclusion is not a necessary consequence
of
aphysical or intellectual
impairment, but the result
of
(conscious) (policy) choices based on false assumptions about
the abilities
of
people with disabilities. The new approach recognises the role which
discrimination - in the form
of
false assumptions about people with disabilities, and the
failure to adapt inaccessible services and jobs - plays in disadvantaging people with
disabilities, and seeks, through, inter alia, legislation, to combat elements
of
disability
discrimination and create equality
of
opportunity for people with disabilities. The new
approach embraces a human rights approach to disability.
One
of
the earliest set
of
domestic provisions that embraced this new approach, was the
American Rehabilitation Act
of
1973 and, in particular, the Americans with Disabilities Act
of
1990. The latter Act, which was presented as an extension
of
civil rights legislation to
cover people with disabilities, attracted a great deal
of
attention internationally, and has
influenced both the international and European (domestic and regional) standard setting.
This article will examine some
of
the above mentioned developments and reflect on
attitudes and assumptions which lie behind disability policy. The paper focuses on recent
developments in Europe, at both the domestic and European Union level, and places these
developments in the context
of
evolving international human rights provisions, which have
also begun to embrace a human rights approach to disability. The area
of
employment will
be used to illustrate the changes in attitude, and the consequent changes in policy and
legislation. However, it should be noted that the developments examined in employment
policy have often been reflected in other areas, such as access to services, residential
accommodation, and education.
The first part
of
this article will give a brief overview
of
the most relevant international
instruments. Both universal and specific instruments relating to employment will be
considered, and recent changes in approach will be noted. The article will then consider how
European countries have sought to promote the employment
of
people with disabilities over
the last fifty years or so, and reflect on the assumptions underlying that policy. Recent
changes in attitudes in some European countries will be noted and the article will consider
how these-changes have been reflected in new legislative approaches, not least
of
all through
anti-discrimination legislation. The article will conclude with some reflections on the
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